German Whistleblower Protection Act: Implementation of the Whistleblower Directive

Member States have until 17 December 2021 to transpose the EU Guideline on the Protection of Persons Reporting Breaches of Union Law (EU Guideline 2019/1937 of 23 October 2019, in short EU Whistleblower Guideline or Whistleblower Guideline) into national law.

The directive provides, among other things, that all companies with a size of 50 employees or more are obliged to set up appropriate internal reporting channels for whistleblowers. These are to be given greater protection because they contribute significantly to law enforcement.
Regardless of the reporting channel chosen, whistleblowers must not suffer any disadvantages. Reprisals such as dismissal and suspension are prohibited.
Whether the information turns out to be true or not is irrelevant for the protection of the whistleblower.

However, companies are protected from abuse if the whistleblower intentionally or grossly negligently provides false information. The whistleblower may then be liable for damages.

It is still open at present how far the protection of the Guideline will go and whether the German law will be able to compensate for the deficits of the Guideline.
It is already clear that it will be more difficult for employers to impose labour law sanctions on whistleblowers or to exercise their right of direction. The reason for this is that in future employers will have to prove that the specific action – e.g. a dismissal – is not connected to a previous whistleblowing. Previously, the employee bore the burden of proof for this.

In any case, the current deadlock in the Bundestag does not absolve companies from creating the necessary conditions for compliance. Even under the current law, there is no alternative.

Should the transposition deadline expire without a corresponding law, whistleblowers can directly invoke the EU Directive. In the case of dismissal following a whistleblower, it would be conceivable, for example, that the employee would invoke the EU Directive as a protective law – the dismissal would then be unlawful under certain circumstances.

The Federal Ministry of Justice and Consumer Protection (BMJV) says: “We are counting on the EU Directive being implemented in time.”

An effective measure to prepare for all these legislative proposals is the establishment of a whistleblower system. In addition, a suitable reporting system for human rights violations along the entire supply chain must be established.

Do you have questions about whistleblowing systems? Then please do not hesitate to contact us.